Now's the time to mend fence's encroachment into backyard

The information in this column is not intended as legal advice but to provide a general understanding of the law. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I have discovered that my neighbor's fence encroaches into my backyard by a few feet. Is this a problem? If so, what should I do?

A: The misplaced fence can be a problem when you try to sell your home. The buyer may not want to purchase the property unless the fence issue is resolved. After all, a few feet can add up to hundreds of square feet if your yard is large.

You should start by talking to your neighbor. You might find that once you show the neighbor a survey, with the fence clearly over the property line by a few feet, that the neighbor will allow you to move the fence. You should offer to pay for the new fence (or for it to be moved, if possible).

But if your neighbor objects to your plan and you want to get the fence moved, you will need to hire an attorney. A demand letter might be all it takes, but a lawsuit is not out of the question.

Q: Can a Lady Bird deed on a homestead be used to avoid probate? A friend has so many unpaid medical bills that her homestead will need to be sold to pay them off. She wants her son to inherit her home, and she is looking for a way to avoid having to pay those bills.

A: A Lady Bird deed would give the home to your friend's son while retaining her right to live there for the rest of her life and sell the home if she chooses. When she dies, the house would pass without probate to her son. So, yes, a Lady Bird deed can avoid probate.

Lady Bird deeds are used most often when a person is trying to qualify for Medicaid or other government benefits.

When a Lady Bird deed is in place, a homeowner can qualify for Medicaid and receive benefits, but still pass the home to the children with no requirement that it be sold to reimburse the state of Texas for money it spends on the homeowner's nursing home care and other medical expenses.

Your friend, however, is already in debt. Under Texas law, her homestead is an exempt asset while she is alive, and it cannot be taken from her (although exceptions can apply).

When she dies, if her house doesn't pass to a spouse or a minor child, but instead passes to an adult son, then the homestead must be sold to pay her debts.

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